[Cite as State v. Newsome,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, : : Case No. 17CA2 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY JASON M. NEWSOME, : : Defendant-Appellant. : Released: 08/31/17 _____________________________________________________________ APPEARANCES:

Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for Appellant.

Benjamin E. Fickel, Hocking County Prosecutor, Logan, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Jason Newsome appeals from the trial court’s judgment

revoking his community control and imposing a prison term after it

determined he had violated his community control by obstructing official

business. On appeal, Appellant contends that 1) the State failed to prove

obstructing official business or any other offense by a preponderance of the

evidence; and 2) the trial court erred by admitting and relying upon hearsay

in finding that he committed a probation violation. Because the State

provided substantial evidence that Appellant obstructed official business,

and because the Ohio Rules of Evidence regarding hearsay do not apply to Hocking App. No. 17CA2 2

community control revocation hearings, we cannot conclude that the trial

court erred or abused its discretion in revoking Appellant’s community

control. Accordingly, the judgment of the trial court is affirmed.

FACTS

{¶2} Appellant, Jason Newsome, pled guilty to one count of

trafficking in heroin, a fourth degree felony, and was sentenced to

community control on April 11, 2013. A motion was filed on September 26,

2016, alleging Appellant had violated the terms of his supervision and

requesting his community control be revoked, based upon the following:

“1. Condition #1: ‘I will obey federal, state and local laws and

ordinances, including those related to illegal drug use and

registration with authorities. I will have no contact with the

victim of my current offense(s).’

To wit: On or about 09/14/2016, in the vicinity of Hocking

County, you caused or attempted to cause physical harm to

Carol J. Francis.

To wit: On or about 09/14/2016, in the vicinity of Hocking

County, you purposely delayed the performance by a public

office of the public officials [sic] authorized acts.” Hocking App. No. 17CA2 3

{¶3} A revocation hearing was held on November 29, 2016. At the

beginning of the hearing, the State withdrew the first grounds stated in their

motion, which alleged Appellant had caused or attempted to cause physical

harm to Carol J. Francis. The State explained that Ms. Francis had refused

to cooperate with them on the misdemeanor charges that were filed and that

it did not have Ms. Francis available as a witness that day. The State went

forward on their allegation that Appellant had obstructed official business

and presented one witness, Deputy Dustin Wesselhoeft.

{¶4} Testimony presented by Deputy Wesselhoeft indicated that on

the night in question, he was dispatched to Carol Francis’ residence in

response to a complaint that Appellant had assaulted her, as well as

numerous calls that an intoxicated individual was knocking on doors. The

deputy testified that while he was conducting his investigation at the

victim’s residence, he observed a car quickly pull in and then out of the

victim’s driveway. Because he was informed by the victim and another

individual there that Appellant was in the vehicle, the deputy quickly left

and initiated a traffic stop of the vehicle. However, because the deputy was

informed by the vehicle occupants that Appellant had been dropped off at

the victim’s house, he returned to her house. Upon arriving, he was

informed that Appellant had briefly entered the house and the fled to the Hocking App. No. 17CA2 4

woods. Deputy Wesselhoeft eventually located Appellant in the woods and

he was taken into custody without further incident.

{¶5} Defense counsel raised several objections to the deputy’s

testimony, arguing it constituted hearsay evidence. The trial court, however,

overruled the objections. After hearing the evidence, the trial court revoked

Appellant’s community control and ordered him to serve the remainder of

the original term of an eighteen-month prison sentence. It is from this

decision that Appellant now brings his timely appeals, setting forth two

assignments of error for our review.

ASSIGNMENTS OF ERROR

“I. THE STATE FAILED TO PROVE OBSTRUCTING OFFICIAL BUSINESS OR ANY OTHER OFFENSE BY A PREPONDERANCE OF THE EVIDENCE.

II. THE COURT ERRED BY ADMITTING AND RELYING UPON HEARSAY IN FINDING THAT MR. NEWSOME COMMITTED A PROBATION VIOLATION.”

ASSIGNMENT OF ERROR I

{¶6} In his first assignment of error, Appellant contends the State

failed to prove that he obstructed official business, or any other offense, by a

preponderance of the evidence. The State counters by arguing that Deputy

Wesselhoeft’s testimony established the elements of obstructing official

business, and that the trial court properly concluded the State provided Hocking App. No. 17CA2 5

substantial proof, the lesser standard for community control violations, that

Appellant committed the offense. Based upon the following we agree with

the State.

{¶7} This Court recently reflected on the proper standard of review

when reviewing decisions revoking community control in State v. Johnson,

4th Dist. Meigs No. 14CA10,

. In Johnson, we noted that

this Court has previously applied a two-part standard in such cases, as

follows:

“ ‘Because a community control revocation hearing is not a criminal trial, the State does not have to establish a violation with proof beyond a reasonable doubt. State v. Wolfson, Lawrence App. No. 03CA25, 2004–Ohio–2750, ¶ 7, citing State v. Payne, Warren App. No. CA2001–09–081, 2002– Ohio–1916, in turn citing State v. Hylton (1991),

,

. Instead, the prosecution must present “substantial” proof that a defendant violated the terms of his community control sanctions. Wolfson, citing

. Accordingly, we apply the “some competent, credible evidence” standard set forth in C.E. Morris Co. v. Foley Constr. Co. (1978),

,

, to determine whether a court's finding that a defendant violated the terms of his community control sanction is supported by the evidence. Wolfson at ¶ 7, citing State v. Umphries (July 9, 1998), Pickaway App. No. 97CA45; State v. Puckett (Nov. 12, 1996), Athens App. No. 96CA1712. This highly deferential standard is akin to a preponderance of the evidence burden of proof. Wolfson, citing State v. Kehoe (May 18, 1994), Medina App. No. 2284–M. * * * Thus, we conclude the appropriate review in this matter is twofold. First, we review the record to determine whether there is substantial evidence to support the court's finding that C.M.C. violated the terms of probation or community control. If it does, then we Hocking App. No. 17CA2 6

review the court's ultimate decision to revoke probation, i.e., the sanction, under the more deferential abuse of discretion standard.’ ” Johnson at ¶ 13; quoting In the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009–Ohio–4223, ¶ 17.

{¶8} Here, a notice of violation was filed alleging Appellant had

violated the terms of his community control by obstructing official business.

R.C. 2921.31 prohibits obstructing official business and provides in section

(A) as follows:

“No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity.”

As previously noted by this Court, “Ohio courts have interpreted this statute

to criminalize only affirmative acts, not the failure to act.” State v. Certain,

,

(4th Dist.); citing State v. May, 4th

Dist. Highland No. 06CA10,

(“An affirmative act is

required to prove a R.C. 2921.31 obstruction of official business violation”);

State v. Wellman,

,

,

(“A violation of this statute requires an affirmative act. A person

cannot be guilty of obstructing official business by doing nothing or failing

to act”); State v. Prestel, 2nd Dist. Montgomery No. 20822, 2005-Ohio-

5236, ¶ 16 (“Ohio courts have consistently held that in order to violate the

obstructing official business statute, a defendant must engage in some Hocking App. No. 17CA2 7

affirmative or overt act or undertaking that hampers or impedes a public

official in the performance of the official's lawful duties, as opposed to

merely failing or refusing to cooperate or obey a police officer's request for

information”); State v. Grooms, 10th Dist. Franklin No. 03AP–1244, 2005-

Ohio-706, ¶ 18 (“R.C. 2921.31(A) requires proof of an affirmative act that

hampered or impeded performance of the lawful duties of a public official”).

{¶9} Appellant contends that the State failed to prove an affirmative

act on his part or that he acted without privilege. Appellant also contends

the State failed to prove that law enforcement was actually hampered or

impeded. Appellant claims that his actions of running into the woods and

hiding in the weeds when he saw law enforcement was not criminal conduct,

absent some law enforcement command to do otherwise, and that he simply

exercised his constitutional right to refrain from speaking with the deputies.

Appellant further informs this Court that he has been unable to locate a

single case where an obstructing official business conviction was upheld

where the defendant merely avoided law enforcement without disobeying a

verbal command of law enforcement.

{¶10} In State v. Harris,

,

(9th Dist.),

¶ 7, the court acknowledged that “[a]n affirmative act is required in order to

support a finding that an individual was guilty of obstructing official Hocking App. No. 17CA2 8

business[,]” and that “the ‘mere failure to obey a law enforcement officer’s

request may not amount to obstruction.’ ” (internal citations omitted).

However, the court also recognized “that the ‘affirmative act of running

from an officer’ does impede an officer’s lawful duty.” Id.; quoting State v.

Sanders, 9th Dist. Summit No. 23504,

. State v.

Sanders, as well as several other cases cited by the Harris court, all involved

scenarios where defendants either ran or retreated from law enforcement

after being given an order to either, stop, come out, or put their hands up.

{¶11} Here, the evidence suggests Appellant ran and hid from law

enforcement when he saw law enforcement, but before law enforcement

spotted him. Thus, law enforcement didn’t have an opportunity to order

Appellant to stop. They were, nevertheless, looking for him, and the

evidence suggests Appellant knew that and sought to evade them. As such,

the evidence indicates Appellant was aware that police officers were

attempting to detain him when he fled into the woods and hid in the weeds.

The officers’ “official business” was to investigate the allegations made by

the various callers as well as Appellant’s ex-girlfriend, Carol Francis’, report

that Appellant had assaulted her. Appellant had no privilege to hamper the

officers in the performance of their official duties, but his actions caused Hocking App. No. 17CA2 9

them to chase and stop a vehicle and then search woods to find him. We

conclude such actions do, in fact, constitute affirmative acts.

{¶12} In State v. LaPorte, 4th Dist. Ross No. 14CA3450, 2015-Ohio-

294, ¶19, a situation involving law enforcement responding to a residence as

a result of a domestic violence report was compared to a situation where a

defendant flees from a Terry stop. See also State v. Willey,

,

(5th Dist.) (comparing a situation involving law

enforcement responding to a residence in response to a report of a “domestic

incident” as a Terry stop.) As noted by the Willey court, “the law within the

State of Ohio recognizes three types of police-citizen encounters: consensual

encounters, Terry stops (brief investigatory stop or detention), and arrests.”

Id. at ¶ 31 (internal citations omitted); see also State v. Millerton, 2015-

Ohio-34,

(2nd Dist.); State v. Glauser, 5th Dist. Tuscarawas

No. 2011AP100039,

; State v. DeBrossard, 4th Dist. Ross

No. 13CA3395,

. A Terry stop is an investigatory detention

and is valid if an officer has reasonable and articulable suspicion of criminal

activity. Willey at ¶ 32.

{¶13} As set forth above, law enforcement responded to Appellant’s

ex-girlfriend’s house on the night in question due to several reports of an

intoxicated individual knocking on doors, as well as a report that Appellant Hocking App. No. 17CA2 10

had assaulted his ex-girlfriend. This type of interaction can be compared to

or characterized as a Terry stop, or brief investigatory detention. While

conducting their investigation at the residence, law enforcement witnessed a

vehicle pull into and then out of Francis’ driveway. Upon being informed

by the residents that Appellant was in the vehicle, law enforcement left and

gave chase to the vehicle, ultimately being informed by the occupants of the

vehicle that Appellant had been dropped off at Francis’ house. When law

enforcement returned to the residence they were then informed that

Appellant had briefly entered the house and then fled into the woods. Law

enforcement eventually found Appellant hiding in the weeds in the woods

next to Francis’ house.

{¶14} Several courts have held that a defendant’s act of fleeing from

a Terry stop is an affirmative act and constitutes obstructing official

business. In State v. Ross, 5th Dist. Stark No. 2007-CA-00127,

, ¶ 28, the court explained that “ ‘[h]eadlong flight-wherever it

occurs-is the consummate act of evasion: it is not necessarily indicative of

wrongdoing, but it is certainty suggestive of such.’ ” Quoting Illinois v.

Wardlow,

,

(2000); see also State v.

(unprovoked flight is simply not a mere refusal to

cooperate.) Similarly, this Court concluded in State v. Certain, 180 Ohio Hocking App. No. 17CA2 11

App.3d 457,

,

, that “fleeing from

police ‘to hamper or impede the police from finding out [the defendant’s]

identity’ would be a violation of R.C. 2921.31.” Thus, we conclude that

here, based upon the facts before us, the trial court did not err or abuse its

discretion in finding that Appellant’s act of fleeing from law enforcement

constituted an affirmative act that hampered and impeded law enforcement’s

investigation on the night in question.

{¶15} We further reject Appellant’s argument that he was under no

obligation to make himself available to law enforcement on the night in

question and that he was merely exercising his Fifth Amendment right to

remain silent. In State v. Glauser the court reasoned as follows in

determining that an officer had reasonable suspicion of criminal activity to

justify pursuing the appellant with an intent to stop him:

“In Illinois v. Wardlow,

,

,

(2000), the suspect fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. An officer exited his patrol car and stopped the suspect. In upholding the stop, the United States Supreme Court held that headlong flight is not necessarily indicative of wrongdoing, but it is certainly suggestive of wrongdoing: ‘Such a holding is entirely consistent with our decision in Florida v. Royer,

,

,

(1983), where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.

,

. And any “refusal to cooperate, without more, does not furnish the minimal level of Hocking App. No. 17CA2 12

objective justification needed for a detention or seizure.” Florida v. Bostick,

,

,

(1991). But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.’ ” Glauser at ¶ 19-21.

Thus, while Appellant is correct that he had a right to remain silent in the

face of questioning by law enforcement, he was without privilege to flee

from them to avoid investigation.

{¶16} Additionally, with regard to any suggestion by Appellant that

he could not have obstructed official business without disobeying the order

of an officer, there is no such requirement contained in the elements of

obstructing official business. Appellant was not charged with resisting arrest

or failure to comply with the order of a police officer. Disobeying an order

of a police officer is not an element the State was required to prove in order

to demonstrate, by a preponderance of the evidence, that Appellant

obstructed official business. Although many cases involving this offense

have fact patterns that include defendants failing to obey an order and

fleeing from law enforcement, we conclude a defendant can still obstruct

official business without disobeying an order of law enforcement. See State

v. Puterbaugh,

,

(reasoning that Hocking App. No. 17CA2 13

there is no need to discuss falsification, as defendant was charged with

obstructing official business, not falsification). Similarly, because failing to

obey an order of a police officer is not an element of obstructing official

business, there is no requirement that such element be proven by the State

here.

{¶17} Finally, with respect to Appellant’s assertions that the State’s

failure to file a formal criminal complaint charging Appellant with

obstructing official business and dismissal of the assault charges involving

Appellant’s girlfriend in some way invalidates the State’s claim that he

violated his probation, we disagree. As this Court has previously explained,

“community control, probation, and parole can be revoked, even if the

underlying criminal charges are dismissed, the defendant is acquitted, or the

conviction is overturned, unless all factual support for the revocation is

removed.” State v. Johnson, supra, at ¶ 16; citing Barnett v. Ohio Adult

Parole Auth.,

,

(1998); State v.

McCants, 1st Dist. Hamilton No. C–120725, 2013–Ohio–2646, ¶ 9.

{¶18} As discussed above, Appellant’s interaction with law

enforcement on the night in question was essentially pursuant to a Terry-

type stop or investigatory detention. Terry stops “must be viewed within the

totality of the circumstances” presented to the officer at the time. State v. Hocking App. No. 17CA2 14

Freeman,

,

, (1980), paragraph one of

syllabus. At the time law enforcement sought Appellant, they were

investigating a report of an assault by Appellant of his ex-girlfriend. The

fact that the State did not go forward on their original claim in the notice of

violation that referenced the assault because the victim would not cooperate

does not diminish the fact that law enforcement was responding to a

domestic report on the night in question and was operating under those facts

at the time. The dismissal of the assault complaint and failure to file a

complaint charging obstructing official business in this case did not remove

all factual support for the trial court’s finding that he violated his community

control. Therefore, the trial court’s determination that Appellant violated his

community control by obstructing the official business of law enforcement

officers who were responding to investigate a report of Appellant assaulting

his ex-girlfriend was supported by substantial proof.

{¶19} Thus, in light of the foregoing, we cannot conclude that the

trial court erred or abused its discretion in finding the State proved, by a

preponderance of the evidence, that Appellant violated the terms of his

community control by obstructing official business. Accordingly,

Appellant’s first assignment of error is overruled. Hocking App. No. 17CA2 15

ASSIGNMENT OF ERROR II

{¶20} In his second assignment of error, Appellant contends that the

trial court erred by admitting and relying upon hearsay in finding that he

committed a probation violation. In making this argument, Appellant

concedes that the Rules of Evidence do not apply at community control

revocation hearings. Nevertheless, he argues that he was prejudiced by the

introduction of hearsay evidence because it was the only evidence that was

presented by the State. He contends “[t]he present case involves evidence

that is exclusively hearsay[,]” and that his due process rights require that he

be provided a right to confront and cross-examine witnesses.

{¶21} This Court has previously noted, with regard to the

applicability of the Rules of Evidence to community control or probation

revocation hearings, that “ ‘[p]robation-revocation hearings are not subject

to the rules of evidence and thus allow for the admission of [otherwise

inadmissible] evidence.’ ” State v. Johnson, supra, at ¶ 24; quoting State v.

Ohly,

, 2006–Ohio–2353,

(6th

Dist.); State v. Estep, 4th Dist. Gallia No. 03CA22, 2004–Ohio–1747, ¶ 6

(“The Rules of Evidence do not apply to community control revocation

hearings”); Evid.R. 101(C)(3) (“These rules do not apply in * * *

[p]roceedings granting or revoking probation [and] proceedings with respect Hocking App. No. 17CA2 16

to community control sanctions * * * ”); 1 Giannelli, Baldwin's Ohio

Practice Evidence, Section 101.11 (3d Ed. 2014) (“Rule 101(C)(3) exempts

from the Rules of Evidence a number of criminal proceedings, including

those involving sentencing, probation, and community control sanctions”);

State v. Talty,

, 2004–Ohio–4888,

(recognizing “no meaningful distinction between community control and

probation”). “The rationale for this exception is that a trial court should be

able to consider any reliable and relevant evidence indicating whether the

probationer has violated the terms of probation, since a probation or

community control revocation hearing is an informal proceeding, not a

criminal trial.” State v. Gullet, 5th Dist. Muskingum No. CT2006–0010,

2006–Ohio–6564, ¶ 27; citing Columbus v. Bickel,

,

(10th Dist. 1991). Thus, we reject any argument by Appellant

that the trial court’s reliance on hearsay evidence, in general, constituted

error.

{¶22} With respect to Appellant’s argument that the evidence

presented by the State was exclusively hearsay and that the trial court’s

reliance upon it, without more, deprived him of his due process rights and

constituted reversible error, Appellant is correct that “ ‘[t]he introduction of

hearsay evidence into a probation-revocation hearing is reversible error Hocking App. No. 17CA2 17

when that evidence is the only evidence presented and is crucial to a

determination of a probation violation.’ ” Johnson at ¶ 25; quoting State v.

; see also State v. McCants, 1st Dist. Hamilton No. C-120725,

(“Although the rules of evidence are inapplicable to

revocation hearings, the admission of hearsay may implicate the defendant’s

right to confront and cross-examine witnesses.”).

{¶23} Here, however, the trial court did not rely exclusively on

hearsay evidence. Hearsay is an out-of-court statement offered in court as

evidence to prove the truth of the matter asserted. Evid.R. 801(C). This

Court has consistently held that “ ‘ “[i]t is well settled that statements

offered by police to explain their conduct while investigating a crime are not

hearsay because they are not offered for their truth, but rather, are offered as

an explanation of the process of investigation.” ’ ” State v. Trainer, 4th Dist.

Pickaway No. 14CA21,

, ¶ 12; quoting State v. Gerald, 4th

Dist. Scioto No. 12CA3519, 2014–Ohio–3629, ¶ 70; quoting State v. Spires,

4th Dist. Gallia No. 10CA10, 2011–Ohio–3661, ¶ 13; quoting State v.

Warren, 8th Dist. Cuyahoga No. 83823, 2004–Ohio–5599, ¶ 46; citing State

v. Price,

,

(1992); State v.

Braxton,

,

(1995); State v. Blevins,

,

(1987). Hocking App. No. 17CA2 18

{¶24} The testimony to which Appellant objected during the hearing

involved statements made by Deputy Dustin Wesselhoeft regarding the steps

he took in attempting to locate Appellant as he was conducting his

investigation on the night in question. He first testified to a report he

personally received from dispatch. He next testified to the information

provided to him by the victim regarding the identity and location of

Appellant as he was conducting his investigation. He next testified to

personally seeing a vehicle pull into the driveway and then leave, as well as

the information provided to him indicating Appellant was in the vehicle,

which led him to follow and then stop that vehicle. He then testified

regarding information provided by the driver of the vehicle he stopped, that

indicated Appellant had been dropped off at the victim’s residence, which

led him to return to the residence to continue his investigation. He then

testified to information provided again by the victim and another person in

the victim’s house indicating Appellant had fled into the woods. He finally

testified to personally locating Appellant, who was hiding in the weeds in

the woods near the house.

{¶25} While some of the information contained in Appellant’s

testimony was provided to Appellant by individuals that did not testify at

trial, some of the testimony was based upon the deputy’s eyewitness account Hocking App. No. 17CA2 19

of what happened that night. Other statements encompassed within the

deputy’s testimony that explained the course of the investigation and how

Appellant was eventually located were not hearsay, as they served as an

explanation of the process of the investigation. In fact, when Appellant’s

counsel repeatedly objected to the testimony during the hearing, the

objections were overruled based upon the trial court’s stated reasoning that

“[n]ormally this sort of thing is not offered for the truth, but just simply to

explain the officer’s subsequent actions so -- * * * All right. So we’ll

overrule that at that [sic] this point.” Thus, the trial court properly overruled

Appellant’s objections on the correct basis. Based upon the foregoing, we

find no merit to the arguments raised in Appellant’s second assignment of

error and it is, therefore, overruled.

{¶26} Having found that the State provided substantial proof that

Appellant obstructed official business, we cannot conclude that the trial

court erred or abused its discretion in revoking Appellant’s probation.

Accordingly, the judgment of the trial court is affirmed.

JUDGMENT AFFIRMED. Hocking App. No. 17CA2 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment and Opinion as to Assignment of Error II; Concurs in Judgment Only as to Assignment of Error I. Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: ______________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.